Trueman v Commonwealth Director of Public Prosecutions - [2007] SASC 432

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TRUEMAN v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2007] SASC 432
Judgment of The Honourable Justice Gray
7 December 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL
EVIDENCE - AFFIDAVITS AND STATUTORY DECLARATIONS - AFFIDAVITS - USE OF AFFIDAVITS
Appeal against conviction – appellant convicted of possessing and uttering counterfeit money pursuant to provisions of Crimes (Currency) Act 1981 (Cth) – fault element of both offences was knowledge of dealing with counterfeit money – issue at trial was whether prosecution had established fault element beyond a reasonable doubt – two affidavits from prosecution witnesses were tendered at trial and received into evidence pursuant to section 59J of Evidence Act 1929 (SA) – section 59J dispenses with the requirement of strict proof for proving any matter that is not genuinely in dispute or where compliance with strict rules of evidence might involve unreasonable expense or delay – witnessing clauses of affidavits were irregular – counsel for appellant objected to irregular form of affidavits – on appeal, counsel for appellant and respondent accepted that admission of affidavits gave rise to real risk of miscarriage of justice – content of two affidavits relevant to credibility and reliability of appellant, and in conflict with appellant’s evidence – consideration of scope and application of section 59J of Evidence Act – consideration of formal requirements for deposing an affidavit – whether admission of two affidavits gave rise to risk of miscarriage of justice.
Held: Appeal allowed – convictions set aside – matter remitted to Magistrates Court for re-trial – admission of affidavits gave rise to risk of miscarriage of justice – affidavits were irregular and should not have been received – need for deponents of affidavits to have been cross-examined – Magistrate’s findings relied on untested affidavit evidence – application of section 59J in criminal proceedings is limited – section 59J more amenable to procedural rather than substantive matters – discretion to apply section 59J should be exercised judicially, in interests of justice.
Crimes (Currency) Act 1981 (Cth) s 7(a), s 9(1)(a); Statutes Law (Miscellaneous Provisions) Act (No. 2) 1985 (Cth); Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth) ; Federal Court Rules 1979 (Cth) O 33, r 3; Federal Court Amendment Rules 2002 (No 1), Statutory Rules 2002 No 130, Sch 1, Item 3; Evidence Act 1995 (Cth) s 190(3), s 190(4); Evidence Act 1929 (SA) s 6(6), s 59J; Statutes Amendment (Attorney General's Portfolio) Act 1992 (SA) s 8; Magistrates Court (Criminal) Rules 1992 (SA) r 43.02 and r 43.17; Criminal Law (Forensic Procedures) Act 1998 (SA) Pt 3, Div 3, referred to.
Rak v Coles Myer Ltd (1996) 68 SASR 272; Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; Pearce (Trading as Mister Cars Gold Coast v Honourable Button, Minister of State for Industry and Commerce) (Unreported, Federal Court of Australia, Pincus J, 20 June 1985); Reisner v Bratt & Anor [2004] NSWCA 22; Iskra v Police (2003) 84 SASR 586; Browne v Dunn (1893) 6 R 67, considered.

TRUEMAN v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2007] SASC 432
Magistrates Appeal
GRAY J

This is an appeal against conviction.
Background
The defendant and appellant, Barry James Trueman, was charged with one count of knowingly possessing counterfeit money,[1] and one count of knowingly uttering counterfeit money.[2] Both offences were alleged to have occurred on 2 December 2006, at Port Lincoln. The defendant pleaded not guilty to both charges. On 10 August 2007, the Magistrate convicted the defendant on both charges. The sentencing of the defendant has been postponed pending the outcome of this appeal. The defendant is presently on bail with the condition that he resides in Berri and report to the Berri police station once a week.
[1] Contrary to section 9(1)(a) of the Crimes (Currency) Act 1981 (Cth).
[2] Contrary to section 7(a) of the Crimes (Currency) Act 1981 (Cth).
The appeal came before me on 27 November 2007. At an early stage of the hearing of the appeal it became apparent that there was a real risk that a miscarriage of justice may have occurred at trial. Counsel for the Commonwealth Director of Public Prosecutions accepted that this was the case. This concession was entirely appropriate in all of the circumstances. As a result I made orders setting aside the convictions and ordering a re-trial.
The events occurring at trial that gave rise to the risk of a miscarriage of justice raise important matters concerning the conduct of, and the procedure to be followed at, a criminal trial. It is appropriate that I provide reasons for the orders that I have made, notwithstanding that they were made by consent.
To understand the issues arising on the appeal, it is necessary to set out a summary of the relevant legislative provisions, as well as the events that occurred at trial. As there is to be re-trial, it is not appropriate to discuss the particular facts of this matter in detail. Further, it is not necessary to do so in order to understand the reasons for the orders made on appeal.
Legislative Provisions
The defendant was convicted pursuant to provisions of the Crimes (Currency) Act1981 (Cth). The second reading speech[3] to the Bill outlines the purpose of the legislation as follows:
This Bill will update and revise all existing Australian law relating to the counterfeiting of currency - both domestic and foreign - and Commonwealth and foreign Government bonds and other forms of securities. It will also create offences in relation to reproduction of Australian paper money and prescribed securities. ...
…
... [T]here can be few more important objects of legislation than protection of the currency of the nation. This is the primary purpose of the present Bill. Until now, law enforcement bodies dealing with currency frauds have had to apply piecemeal pieces of legislation, both Commonwealth and State; these have not given full satisfactory protection to Australian currency and often no protection at all to the currencies of other nations. Adequate protection will now be provided by one comprehensive piece of legislation.
[3] Commonwealth, Parliamentary Debates, Senate, 11 June 1981, 379 (Senator Anthony Messner, South Australia Minister for Veterans’ Affairs).
Section 7 of the Act prescribes the offence of knowingly uttering counterfeit money or securities. It relevantly provides:
A person shall not –
(a) utter counterfeit money, knowing it to be counterfeit money;
…
Penalty –
(a) in the case of a person, not being a body corporate – imprisonment for 12 years;
…
Section 9 of the Act prescribes the offence of knowingly possessing counterfeit money, or securities. It relevantly provides:
(1)     A person shall not:
(a)     have in his possession counterfeit money (not being an excepted counterfeit coin), knowing it to be counterfeit money; or
(b)     have in his possession a counterfeit prescribed security, knowing it to be a counterfeit prescribed security.
(1A)   Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2)It is a defence to a prosecution of a person for an offence against subsection (1) in relation to the possession of counterfeit money or a counterfeit prescribed security if the person charged establishes to the satisfaction of the court:
(a)     that he did not make the counterfeit money or counterfeit prescribed security; and
(b)     that he did not, after the time when he first learned that the counterfeit money or counterfeit prescribed security was counterfeit money or a counterfeit prescribed security or the time when he acquired the counterfeit money or counterfeit prescribed security, whichever was the later time, have a reasonable opportunity to surrender it to a member of the Australian Federal Police or of the police force of a State or Territory or to any other person prescribed for the purposes of this section.
It is relevant to record that since the commencement of the Crimes (Currency) Act various provisions of the Act, including section 9, have been subject to legislative amendment.[4] It is important to note that throughout the history of the legislative scheme, the fault element of both section 7 and section 9 offences - that is, knowledge on the part of a defendant, that he or she is dealing with counterfeit money - has remained the same. Further, at all times, the prosecution have had the obligation of establishing this fault element beyond a reasonable doubt. To express this in the alternative, the prosecution carry the onus of excluding beyond reasonable doubt, any reasonable hypothesis consistent with innocence.
[4] Section 9 has been amended by the Statutes Law (Miscellaneous Provisions) Act (No.2) 1985 (Cth) and the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth).
The scope and application of section 59J of the Evidence Act 1929 (SA) are also relevant to this appeal. This is because at trial, affidavit evidence was tendered by the prosecution and admitted into evidence as exhibits (marked “P1” and “P2”) pursuant to this provision. The appropriateness of the tender and admission of the affidavits was a matter advanced by the defendant on appeal.
Section 59J
Section 59J of the Evidence Act provides as follows:
(1)     A court may at any stage of civil or criminal proceedings—
(a)     dispense with compliance with the rules of evidence for proving any matter that is not genuinely in dispute; or
(b)     dispense with compliance with the rules of evidence where compliance might involve unreasonable expense or delay.
(2)In exercising its power under subsection (1) the court may, for example, dispense with proof of—
(a)     a document or the execution of a document;
(b)     handwriting;
(c)     the identity of a party;
(d)     the conferral of an authority to do a particular act.
(3)A court is not bound by the rules of evidence in informing itself on any matter relevant to the exercise of its discretion under this section.
Section 59J was introduced into the Evidence Act by virtue of section 8 of the Statutes Amendment (Attorney General’s Portfolio) Act 1992 (SA), with effect from 6 July 1992. The provision has application to both civil and criminal proceedings. The second reading speech to the relevant Bill outlines the purpose of the provision as follows:[5]
The Attorney-General … would like to move an amendment to the Bill which amends the Evidence Act … The amendment relates to the provision to the courts of a discretion not to apply the rules of evidence. The amendment … would insert a new section 59j …
…
That sort of amendment was the subject of discussion in the courts restructuring package last year, when I was critical of the proposal to allow the courts to make rules to modify the rules of evidence as they applied to a class of proceedings and in the creation of evidentiary presumptions. My criticism was that the provision in that legislation was too wide. The Attorney-General indicated that he would look at the matter and, as a result, he proposes to move an amendment to give a discretion to a court in certain circumstances.
… The Attorney-General … draws attention to the fact that the Federal Court rules already include a provision that the court may, at any stage of the proceedings, dispense with compliance of the rules of evidence for proving any matter that is not bona fide in dispute; dispense with compliance with the rules of evidence where such compliance might occasion or involve unnecessary or unreasonable expense or delay, including but without limiting the generality of this power, or require compliance with the rules relating to proof of handwriting or of documents, and the proof of the identity of parties or of authority.
That is reasonably drafted and is already in the Federal Court rules.
[Emphasis added].
[5] South Australia, Parliamentary Debates, Legislative Counsel, 7 April 1992, 3905-3906 (The Hon. K.T. Griffin).
It is apparent from the second reading speech that Parliament was concerned with the reach of the proposed section 59J of the Evidence Act. The Minister’s reference to the Federal Court Rules would appear to be a reference to Order 33 Rule 3 of the Federal Court Rules 1979 (Cth),[6] which then provided:
The Court may at any stage of the proceedings-
a)dispense with compliance with the rules of evidence for proving any matter which is not bona fide in dispute; or
b)dispense with compliance with the rules of evidence where such compliance might occasion or involve unnecessary or unreasonable expense or delay, including, but without limiting the generality of this power, compliance with the rules relating to proof of handwriting or of documents and the proof of the identity of parties or of authority.
[6] O33, r3 has also since been repealed (see Federal Court Amendment Rules 2002 (No 1), Statutory Rules 2002 No. 130, Sch 1, Item 3) but there is a provision equivalent to O33, r3 in s 190(3) of the Evidence Act 1995 (Cth).
There is little authority on the scope and application of section 59J of the Evidence Act. In Rak v Coles Myer Ltd[7], Lander J articulated the purpose of the provision in the following terms:[8]
As can be seen, the purpose of s 59j is to dispense with the requirements of strict proof for proving any matter that is not genuinely in dispute or where compliance with the strict rules of evidence might involve unreasonable expense or delay.
The section is not limited to the proof of matters only in documentary form. Section 59j is a further instance, in my opinion, of the relaxation of the rules of evidence in an endeavour to allow matters not really in dispute to be proved otherwise than by strict proof.
It is to be noted that ss 45a, 45b, 45c and 59j apply to both civil and criminal proceedings.
When one has regard to the reforms that have been made to the Rules of Court in the recent past, the sections of the Evidence Act to which I have referred and the modern approach to the Law of Procedure, it can be seen that the intention of both the Parliament and the courts is to ensure that any matter that is not subject to any genuine dispute, or any document about which there is no real dispute, ought to be proved quickly and without the previous requirement of formality. The whole object is to require the parties to focus their attention on the matters genuinely in dispute so as to avoid the parties incurring the needless cost involved in lengthy litigation, and to avoid the State bearing the cost of the administration of justice.
[7] Rak v Coles Myer Ltd (1996) 68 SASR 272.
[8] Rak v Coles Myer Ltd (1996) 68 SASR 272 at 278.
Subsequently, in Southern Equities Corp Ltd (in liq) v Bond[9], Lander J again came to consider the operation of section 59J of the Evidence Act. In the course of his reasons, his Honour recognised that the provision was more amenable to procedural rather than substantive matters, and considered that the discretion to dispense with compliance with the rules of evidence should not be exercised unless it could be done without injustice to any party, and when it was in the interests of justice to do so. He observed:[10]
[Section 59J], in my opinion, has more work to do when proof of formal or peripheral matters is being considered.
I appreciate of course the purpose of s 59J. It is to aid in the administration of justice and to assist in the delivery of more expeditious and cheaper justice.
I believe it is a valuable tool for a court in narrowing issues and proving facts. It cannot, however, be overused so as to deliver a forensic advantage to one party at the expense of another party. While s 59J is silent as to when the discretion mentioned in the section should be exercised, in my opinion, the discretion would not be exercised unless it could be done so without injustice to any party and when it was in the interests of justice to do so.
I respectfully agree with his Honour’s analysis.
[9] Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554.
[10] Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554 at [327] – [329].
To a similar effect, in Pearce (Trading as Mister Cars Gold Coast v Honourable Button, Minister of State for Industry and Commerce),[11] when discussing the operation of Order 33 Rule 3 of the Federal Court Rules (set out earlier in my reasons), Pincus J observed that the discretion to dispense with compliance with the rules of evidence, “[must] be exercised in a judicial fashion”. These remarks are apposite to the operation of section 59J of the Evidence Act.
[11] Pearce (Trading as Mister Cars Gold Coast v Honourable Button, Minister of State for Industry and Commerce) (Unreported, Federal Court of Australia, Pincus J, 20 June 1985).
It is also to be noted that section 190(3) of the Evidence Act 1995 (Cth) is comparable to section 59J of the Evidence Act 1929 (SA), save that section 190(3) is specifically restricted to civil proceedings. It provides:
(3)     In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if:
(a)     the matter to which the evidence relates is not genuinely in dispute; or
(b)     the application of those provisions would cause or involve unnecessary expense or delay.
Pursuant to section 190(4) of the Commonwealth EvidenceAct, without limiting the matters the court may take into account in deciding whether to exercise the power conferred by section 190(3), the court is required to consider the following matters:
-the importance of the evidence in the proceeding;
-the nature of the cause of action or defence and the nature of the subject matter of the proceeding;
-the probative value of the evidence; and
-the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
In my view, these considerations would apply to the discretion to apply section 59J of the Evidence Act in the receiving of evidence in criminal proceedings. Taking into account however, the different nature of criminal proceedings, there may be greater stricture on the operation of section 59J of the Evidence Act in such proceedings. The use of section 59J of the Evidence Act in a criminal trial is likely to be limited, having regard to an accused’s right of silence and the obligation of the prosecution to prove guilt beyond a reasonable doubt.
The Trial
The trial was heard before a magistrate sitting at Port Lincoln on 9 and 10 August 2007. The Magistrate described the background to the charges as follows:
During the morning of Saturday, 2 December, 2006, [the defendant] was shopping at Coles Supermarket at Port Lincoln. At the check-out he presented three $50 notes to the check-out operator who questioned whether they were genuine notes. The defendant then used his credit card to pay for the goods. Personnel from Coles contacted the local police who conducted inquiries.
The Magistrate then recounted the charges against the defendant:
As a result of those inquiries a member of the police force has charged the [defendant] with two offences against provisions of the Crimes (Currency) Act, 1981 (Cth). In one information she has alleged that on 2 December, 2006, at Port Lincoln, the defendant had in his possession counterfeit money, contrary to s.9(1)(a) of the Act. In the particulars of the charge, the informant has alleged that the defendant had in his possession 239 $50 Australian bank notes that were counterfeit. In a separate information the informant has alleged that, on the same date and at the same place, the defendant uttered counterfeit money, knowing it to be counterfeit money, contrary to s.7(a) of the Act. In the particulars of that charge the informant has alleged that the defendant uttered three $50 Australian bank notes that were counterfeit as payment for goods purchased from Coles Supermarket.

The case for the prosecution was summarised by the Magistrate in the following terms:
According to the prosecution case, the three notes which the defendant presented to the check-out operator were counterfeit notes. As a result of the inquiries, police discovered another 236 $50 notes that were counterfeit. One was in the defendant’s wallet; the rest were found in his caravan at Kirton Point Caravan Park. It is the prosecution case that the defendant had the 239 notes in his possession and that he knew that they were counterfeit notes. It is the prosecution case that the defendant uttered three of those notes knowing that they were counterfeit notes.
The issue at trial was whether the prosecution had established the fault element of the charges beyond a reasonable doubt. All other elements of both offences were not in issue. The defendant, as observed by the Magistrate, acknowledged this to be the case. The Magistrate summarised the case for the defence in the following terms:
In his answers to the charges the defendant did not dispute that the 239 $50 notes were in his possession. He admitted that they were all counterfeit. He did not dispute that he presented three of them to the check-out operator at Coles Supermarket in payment for goods. He said that, when he presented them, he had no idea that any of the notes were counterfeit. He explained that those notes came into his possession about four months earlier in Mildura when he sold a car for $12,500 and received the proceeds in cash. He believed that the counterfeit notes were passed to him as part of the proceeds.
…
Although by his pleas of not guilty, the defendant has put everything in issue, it was apparent from the conduct of the defence case that the central issue in relation to each charge was whether the defendant knew that the $50 notes, the subject of each charge, were not genuine paper money.
The prosecution called oral evidence from a number of witnesses, and, in addition, tendered two affidavits which were marked as exhibits (“P1” and “P2”) and received into evidence. As earlier observed, it is the tender of these affidavits, and their contents that has given rise to the risk of a miscarriage of justice. The oral evidence called by the prosecution was not disputed. There was no issue about the credibility or the reliability of that evidence.
It is convenient first to discuss the circumstances surrounding the tender of these affidavits. On my understanding, the prosecution tendered the affidavits and then the defendant objected to the tender being accepted. The defendant pointed out that there were material irregularities relating to the jurats. Under the relevant Rules, a jurat is described as a “witnessing clause”.[12]
[12] See Rule 43.02 of the Magistrate Court of South Australia (Criminal) Rules 1992 (SA).
At the hearing of the appeal, an affidavit was received, by consent, from counsel appearing for the defendant at trial. It is convenient to set out the full text of that affidavit.
I was instructed by Coates PL to appear as Defence Counsel at the Appellant’s trial which commenced on 9 August 2007 before Mr Harris SM in the Port Lincoln Magistrates Court.
Mr Fisher appeared for the Commonwealth Director of Public Prosecutions.
At the conclusion of the Prosecutor’s opening address Mr Fisher sought to tender the Affidavits of Alan Jones and Barry Clark.
I objected to the tender of the Affidavits and referred His Honour to the Supreme Court case of Isk[ra] v Police [2003] SASC 50.
I made submissions that the Affidavits were bad in form as they had not been affirmed or sworn. I told His Honour that the Affidavits did not comply with Section 25(3) of the Evidence Act 1929.
I paraphrased what Justice Perry had said in Isk[ra] and told the Learned Magistrate that Justice Perry had been critical of the Magistrate and Counsel in accepting the Affidavits. I told the Court that I would like to have had the opportunity to cross-examine the Deponents of the Affidavits.
The Learned Magistrate then referred me to Section 59(J) of the Evidence Act 1929 and asked why the Affidavits should not be admitted pursuant to that Section.
I told the Magistrate I was not familiar with that section and he requested his Clerk look up the section in Lunn.
The Learned Magistrate then read the section aloud in Court.
The Learned Magistrate then addressed me and said that he recalled a case, where Justice Perry conducted a murder trial largely on unsworn Affidavit material. I do not recall whether His Honour sighted the case.
I told His Honour I could not advance any reason why the material should not be admitted pursuant to Section 59(J).
I did not protest or demand that the witnesses be presented for cross examination.
I know the facts deposed herein of my own knowledge.
A confirmatory affidavit from the counsel’s instructing solicitor was also received by consent.
These affidavits were necessary, as the transcript of the trial proceedings did not record these events. It is relevant here to note that courts have, on occasion, recognised that in certain circumstances court transcript may not be full or completely accurate, but that it is generally not appropriate for the Court to attempt to investigate what, if any, errors there might be in the transcript.[13]
[13] See Reisner v Bratt & Anor [2004] NSWCA 22 at [12] per Ipp JA (with whom Hodgson JA agreed).
As referred to in the affidavit of counsel, the attention of the Magistrate was drawn to the decision of Perry J in Iskra v Police.[14]In that case, the defendant was charged with one count of attempted murder and one count of wounding with intent to cause grievous bodily harm. He appealed to a single judge of the Supreme Court, against the final orders of a magistrate, which authorised the carrying out of forensic procedures[15] against him, pursuant to Part 3, Division 3 of the Criminal Law (Forensic Procedures) Act 1998 (SA). The two applications in support of the final orders were supported by affidavits of the police officer assigned to investigate the charges laid against the defendant. Both affidavits were admitted into evidence by the Magistrate on the hearing of the application. At the hearing of the application, counsel for the defendant sought to cross-examine the investigating officer on these affidavits. The Magistrate refused the request to cross-examine and held that the final orders should be made. The primary complaint advanced on the appeal was that the Magistrate erred in refusing to permit cross-examination. The defendant did not complain that the evidence, which was before the Magistrate, was insufficient to justify the making of the final order.
[14] Iskra v Police (2003) 84 SASR 586.
[15] Including hand swabs, an external body examination and a buccal swab.
Perry J quashed the final orders under appeal and remitted the matter for further hearing in the Magistrates’ Court. In the course of his reasons, Perry J observed that the affidavits were irregular, and on this basis should not have been received by the Magistrate. His Honour stated:[16]
I mention in passing that, in my view, neither affidavit should have been accepted by the magistrate, as in the introductory paragraph the words "make oath and say/affirm" are left in full without the alternative being deleted, and the same defect appears in the jurat which states "sworn (or affirmed)".
Section 25(2) [of the Criminal Law (Forensic Procedures) Act] provides that "Evidence must be verified on oath or by affidavit". These affidavits should have been rejected as being bad in form. The irregularity appears to have escaped the attention of the magistrate and of counsel. It came to my attention after the completion of the hearing of the appeal.
[16] Iskra v Police (2003) 84 SASR 586 at [47]-[48], [98], [100]-[102].
Perry J concluded:[17]
If the evidence of [the investigating officer] … had been in proper form and had been properly admitted, it would have provided a strong basis for the making of an order. ...
…
... [I]n my view, the orders under appeal should not have been made due to procedural shortcomings, rather than a lack of cogency in the evidence which the appellant sought to adduce.
In those circumstances it would be unfortunate if the application was to be dismissed.
Rather, I think that the proper order for this Court to make is to quash the orders under appeal and substitute an order that the matter be remitted for further hearing in the Magistrates’ Court.
[17] Iskra v Police (2003) 84 SASR 586 at [98], [100]-[102].
On the hearing of the appeal in the present proceedings, the Director submitted that the observations of Perry J were not directly on point. It was said that section 59J of the Evidence Act provided a remedy to overcome the defect in the execution of the affidavits. It was contended that if there was no genuine dispute that the documents were affidavits, they could be received notwithstanding the irregularities.
It is also relevant that pursuant to Rule 43.17 of the Magistrates Court of South Australia (Criminal) Rules 1992 (SA), an affidavit which is irregular in form, may be received into evidence notwithstanding the irregularity. Rule 43.17 is in the following terms:
An affidavit may, unless the court otherwise orders, be received in evidence notwithstanding any irregularity in form.
It should also be noted that section 6(6) of the Evidence Act provides that “no oath or affirmation is invalid by reason of a procedural or formal error or deficiency”.
All of these provisions provide a source of power on which the Magistrate could draw to receive the affidavits, notwithstanding the irregularities. However, there were other ways to address the irregularities if there was no genuine dispute concerning the contents of the affidavits. The defendant could have been invited to agree to the non-contentious facts. A short adjournment could be granted to allow further regular affidavits to be sworn.
This discussion leads to the matter of real concern. It was the contents of the affidavits in respect of which there was a genuine dispute. The discussion about irregularity of form deflected attention from the real issue. Although counsel for the defendant informed the Court that she would like to have the opportunity to examine the deponents to the affidavits, there was no condescension to particularity. The Magistrate was not told of the nature of the dispute. There was no application for the deponents to be presented for cross-examination. It was against this background that the tender of the affidavits was accepted and the trial proceeded.
In the course of the defendant’s evidence, it became clear that his account of events was in conflict with the content of the two affidavits tendered by the Director. Part of this conflict was relevant to the credibility and reliability of the defendant. As the Director acknowledged on the hearing of the appeal:
[The] explanation proffered by the appellant in evidence is obviously inconsistent and materially inconsistent with the amounts recorded for the cars in those affidavits. That was an observation made by the Magistrate in the course of his reasons. Indeed, one of the bases upon which he ultimately came to reject the appellant’s account. One of the matters I was to put to your Honour was that if the matters contained in those affidavits were contested then obviously the deponent[s] ought to have been cross-examined on those [documents].
…
It appears to the respondent that as the events of the trial transpired, the contents of those affidavits were genuinely in dispute. So much is plain from the way that the evidence from the appellant emerged in the course [of the trial]…
There is a further matter. There was an important aspect of the defence case that called for the cross-examination of one of the deponents in respect of a matter not mentioned in the affidavit, but of importance to the reliability and credibility of the defendant. As the Director pointed out on the appeal, there was a need for compliance with the rule in Browne v Dunn. [18]
[T]he Magistrate, whilst observing the inconsistency between the appellant’s account in respect of the purchase of these vehicles – the inconsistency between that and the affidavit material – didn’t appear to raise that issue when the appellant was giving evidence, in terms of a Browne v Dunn application.
[18] Browne v Dunn (1893) 6 R 67.
It will be recalled that the rule in Browne v Dunn[19] requires that where it is intended to challenge in some way or draw particular inferences from the evidence of a witness, the challenging party is obliged to direct the attention of the witness to that fact, and the material must be put to the witness in cross-examination.
[19] Browne v Dunn (1893) 6 R 67.
As the trial unfolded a review of the transcript discloses the need for the deponents to the two affidavits to have been presented to give oral testimony and to be cross-examined. Their evidence went directly to the credibility and reliability of the defendant and to issues on which the Magistrate made unfavourable findings concerning the defendant. The Magistrate found that there were improbabilities associated with the defendant’s evidence in which he drew on the untested contradictory evidence in the two affidavits. It is these circumstances that have given rise to the risk of a miscarriage of justice.
At trial, all concerned appear to have overlooked this emerging and important issue. An issue that had the capacity to “derail” the trial. The issue had its genesis in the circumstances surrounding the tender of the two affidavits. At that point the problem was latent. A review of the evidence reveals that the problem emerged during the course of the defendant’s evidence-in-chief, and then during cross-examination. The Magistrate’s findings demonstrate that the problem impacted on his findings of guilt. The Director has conceded that a risk of a miscarriage of justice had arisen. As earlier observed, this was an entirely appropriate concession.
Conclusion
As a consequence of the events outlined in my reasons I made the orders earlier referred to.